The U.S. should file a formal complaint under the treaty that created the International Civil Aviation Organization (ICAO) to gain relief from Europe’s unpopular emissions trading scheme (ETS) for aircraft, representatives of the aviation industry told sympathetic lawmakers March 28 in Washington, D.C.
Appearing at a “roundtable” discussion hosted by the leadership of the House aviation subcommittee, representatives of Airlines for America (A4A), the Air Line Pilots Association and NBAA said they support a filing under Article 84 of the 1944 Chicago Convention to have ICAO’s permanent Council resolve the international dispute over the ETS. The dispute-resolution procedure, if initiated, recalls the tactic used by the U.S. in March 2000 to protest the European Union’s aircraft hushkit regulation, which the EU ultimately repealed two years later. “We believe an Article 84 case is the logical next step,” said Nancy Young, A4A vice president for environment affairs. “We believe that the U.S. is the right party to bring it.”
Noncommittal on an Article 84 filing, however, was a panelist representing the U.S. State Department. Krishna Urs, deputy assistant secretary for Transportation Affairs, said the Obama Administration is “looking at the whole range of options that are available to us” in opposing the ETS. “We have made no decision on an ‘84’ at this time as far as the United States government is concerned,” he added.
The U.S. House has already passed legislation—H.R. 2594—that would prohibit U.S. civil aircraft from participating in an emissions trading scheme “unilaterally established” by the EU, and the Senate has introduced a similar bill (S. 1956). Lawmakers participating in the roundtable discussion appeared receptive to an Article 84 filing. Florida Republican Rep. John Mica, chairman of the House Transportation and Infrastructure Committee, won approval of a motion to write letters to the Obama Administration and the U.S. ambassador to ICAO urging “an Article 84 remedy” to the ETS dispute.
In 2009 A4A mounted a legal challenge to the ETS, which the European Court of Justice rejected last December. The association said March 27 that it has “appropriately ended” the lawsuit now that the U.S. and other world governments, including China, India and Russia, stand united in opposition. There is a technical complication in pursuing the Article 84 filing, however. While the 27 member states of the EU belong to ICAO, the EU itself is not a member. “That poses a particular problem because the EU established the (ETS) legislation, directed its member states to implement it individually and yet as a private party bringing an action, the defense is the EU itself has not signed the relevant treaties,” Young said. “It underscores why the United States needs to bring an Article 84 case because that cues up the Chicago Convention, the relevant treaty, in the relevant body—ICAO—and it gets directly to the 27 EU member states' obligations under the treaty.”